Over at Crooks and Liars, Karoli Kunis has a post about the last shot Democrats will have to land Merrick Garland on the Court:
David Waldman (KagroX on Twitter) has outlined how they can confirm Judge Merrick Garland on January 3rd for the few minutes that they will be the majority in the Senate. Waldman is a long-standing expert on Senate procedure and political plays. He was one of the first to call for passage of the ACA via reconciliation in the Senate after Scott Brown was elected.
Here it is, in a nutshell.
On January 3, 2017, Democrats will hold the majority in the Senate for a few minutes, until the newly-elected Senators are sworn in. Biden could convene the Senate in those few minutes and call for a vote. The majority could then suspend the rules and vote in Merrick Garland.
The key here is that VP Biden would have to be willing to convene the Senate and recognize Senator Dick Durbin instead of Mitch McConnell. Durbin moves to re-nominate Garland, and Senate Democrats then vote to confirm him. They will have a quorum for those few minutes.
It’s bold. Garland would be confirmed by 34 Democrats and no Republicans. It will certainly enrage Republicans, but they’re already enraged and full of hubris about how they’re going to screw Democrats anyway, so what do they really have to lose?
It would be a both highly dramatic and highly necessary move. Leaving without appointing Garland would guarantee Trump and the Republican Party at least one (and maybe two, possibly three) nominations if the Republican Party eliminates the filibuster for Supreme Court nominees. Which they likely will—they’re entirely willing to pull moves like this to achieve their objectives; their willingness to subvert norms is the very reason why Garland has been hung out to dry for months while the Court has been deadlocked. Pushing Garland through is the right move. It’s the responsible move. And it probably will not be done.